Citation Nr: 1325500 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-22 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to coronary artery disease (CAD), diabetes mellitus, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In May 2009, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims files. In October 2009, the Board remanded the above claim for additional development, along with claims for a heart condition and total disability evaluation based on individual unemployability (TDIU). During remand status, in August 2011, the RO granted service connection for coronary artery disease, status-post myocardial infarction and coronary artery bypass graft; and assigned an initial 30 percent evaluation, effective April 16, 2007. The RO also granted a TDIU. As this represents a full grant of the benefits sought in regard to the heart and TDIU claims, these issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). In January 2012, the Board denied the claim for service connection for hypertension. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). The Court issued a September 2012 order granting a joint motion of the parties to vacate the Board's denial and remand the matter to the Board for action consistent with the joint motion. Here, the parties agreed that the theory of entitlement to service connection for hypertension as secondary to service-connected CAD had been reasonably raised by the record, but not yet addressed by the Board. This claim was previously before the Board in April 2013. The Board remanded the claim so that the Veteran could be afforded an additional VA examination. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in regards to the Veteran's claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. In April 2013, the Board remanded the claim so that the Veteran could be scheduled for a VA examination. The Board directed that the examination report needed to address whether the Veteran's service connected disabilities (diabetes mellitus, CAD, and PTSD) alone or in combination aggravated or caused his hypertension. In the May 2013 VA examination report, the examiner noted that the Veteran's hypertension was not caused by CAD because his hypertension was diagnosed first and properly treated. She opined that his hypertension was likely due to his continued weight gain and obesity. Under the aggravation section of the opinion, she noted that she could not establish a baseline severity for his hypertension. When asked to provide a rational as to why a baseline cannot be established, she indicated that the Veteran's "CAD and PTSD were stable and well-controlled," and that his hypertension was caused by his weight gain. The section was requesting that the examiner determine the baseline of the Veteran's hypertension. While she indicated she could not, her rationale for this opinion did not address his baseline hypertension. As such, the VA examination opinion is inadequate. Stegall v. West, 11 Vet. App. 268 (1998). Report of VA heart examination dated in October 2007 reflects that the Veteran's hypertension had been diagnosed some 20 years prior to the development of his service-connected diabetes mellitus, and his CAD developed approximately 10 years prior to diabetes mellitus. Notably, the claims file does not contain treatment records from the 1990s or prior, which could help establish baseline hypertension. On remand, attempts should be made to obtain treatment records prior to 2004. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated him for his hypertension, CAD, DM, and PTSD prior to 2004. Specifically, attempt to obtain any treatment records for hypertension prior to the 1990s. After the appellant has signed the appropriate releases, attempts should be made to obtain treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The appellant and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After obtaining any additional evidence, return the claims file to the April 2013 VA examiner for an addendum opinion. The claims files should be reviewed along with a copy of any pertinent records located in Virtual VA. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that hypertension is proximately due to or aggravated by service-connected CAD, diabetes mellitus, PTSD, or a combination thereof. A complete rationale for all opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions. The examiner should address the baseline severity of the Veteran's hypertension, if possible. If the baseline severity is not ascertainable, then provide an explanation of why it cannot be established. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Then, the RO or AMC should review the report of examination to ensure that the requested opinion is provided and supported by an adequate rationale; also the RO or AMC undertake any other development it determines to be warranted. 4. After the development requested above has been completed to the extent possible, the RO or AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the claims files are returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).